PAUL MORIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the postconviction court erred in denying a claim challenging the factual basis for a minimum mandatory sentence without conclusively refuting the claim or holding an evidentiary hearing.
Paul Morin appealed the denial of his motion for postconviction relief, specifically challenging the factual basis for a minimum mandatory sentence im…
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[*1251] STRINGER, Judge.
Paul Morin appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of claims one and three without comment but reverse and remand the denial of claim two.
In claim two, Mr. Morin attacked the factual basis of his plea, asserting there was insufficient evidence to justify the trial court’s imposition of a minimum mandatory sentence pursuant to section 775.087(2), Florida Statutes (2002). Mr. Morin argued that the trial court determined he had used a firearm in the commission of a burglary solely from the testimony of a codefendant. Mr. Morin claimed that no forensic evidence demonstrated he had used a firearm and no residue test was ever performed.
The postconviction court denied the claim, finding that it was a facially insufficient claim of ineffective assistance of counsel. However, Mr. Morin did not claim ineffective assistance of counsel. Moreover, Mr. Morin’s claim is cognizable in a rule 3.850 motion. See State v. Mancino, 705 So. 2d 1379, 1381 (Fla.1998) (holding that “rule 3.850 rather than rule 3.800(a) was the proper procedural vehicle for Mancino to challenge his minimum mandatory sentence”).
Additionally, neither the attachments to the postconviction court’s order nor the limited record before this court conclusively refutes Mr. Morin’s claim. Accordingly, we reverse and remand for reconsideration of claim two. On remand, the postconviction court shall either attach those portions of the record that conclusively refute Mr. Morin’s claim or conduct an evidentiary hearing. We note that form language from Mr. Morin’s plea agreement is insufficient to establish a factual basis for the minimum mandatory penalty imposed upon Mr. Morin. See Dye v. State, 667 So. 2d 935, 936 (Fla. 2d DCA 1996).
Reversed and remanded.
WHATLEY and DAVIS, JJ., Concur.
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Jaqueal Edward Harris v. State, 93 So. 3d 409 (Fla. 2d DCA 2012)…(Fla. 4th DCA 2010) (citing Young v. State, 935 So. 2d 1263 (Fla; 2d DCA 2006)). Additionally, the form language from Harris’s plea agreement is insufficient to establish a factual basis for the minimum mandatory penalty imposed. See Morin v. State, 947 So. 2d 1250,1251 (Fla. 2d DCA 2007). Accordingly, we reverse and remand ground one for the postconviction court to either attach portions of the record that conclusively refute the allegation or to conduct an evidentiary hearing. Affirmed in part; reversed…
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Nowell v. State, 67 So. 3d 1064 (Fla. 2d DCA 2011)…o. 2d 1379, 1380-81 (Fla.1998) (holding that rule 3.850 is an appropriate means to challenge the minimum mandatory sentence imposed pursuant to a plea when there is no allegation that the sentence exceeds the maximum allowed by law); Morin v. State, 947 So. 2d 1250, 1251 (Fla. 2d DCA 2007) (citing Mancino and further noting that the plea agreement’s form language would be insufficient, without more, to refute the claim). In its present form, however, Nowell’s motion is not facially sufficient for considerati…
Authorities Cited
- State v. Mancino, 705 So. 2d 1379 (Fla. 1998)
- Trent DYE v. State, 667 So. 2d 935 (Fla. 2d DCA 1996)